By Frances Raday

The UN Working Group (WG) on discrimination against women in law and practice has issued a call to Governments to repeal laws criminalizing adultery. The WG notes that the enforcement of such laws leads to discrimination and violence against women in law and in practice.

The call by the WG is path-breaking. Previously, human rights mechanisms have made urgent appeals to commute criminal sentences for adultery in specific cases, on grounds of  unfair trial or because application of the death penalty for  adultery is contrary to international standards.  However, the WG considers that commuting sentences, though welcome, is not enough and the offence of adultery must not be regarded as a criminal offence at all.

In many countries around the world, adultery continues to be a crime punishable by severe penalties, including, fines, arbitrary detention, imprisonment, flogging and, in the most extreme instances, death sentences by stoning.  In many Islamic states, adultery is prohibited and, in some, court sentences of death by stoning are intermittently promulgated and sometimes carried out, as, recently, in Saudi Arabia and in Mali. In many South-West Asian and East Asian countries, including India, South Korea and the Philippines, adultery continues to be a crime. In Pakistan, adultery is a crime under the Hudood Ordinance which sets a maximum penalty of death,which has been particularly controversial because it requires a woman making an accusation of rape to provide extremely strong evidence to avoid being charged with adultery herself. In the US, about 18 states still have criminal adultery provisions and while prosecutions remain rare, they do occur.

Adultery laws have usually been drafted and almost always implemented in a manner prejudicial to women. Provisions in penal codes often do not treat women and men equally and establish harsher rules and sanctions for women. In many instances, adultery is defined as consensual sexual intercourse between a married woman and a man who is not her husband. In some countries, rules of evidence value women’s testimony as half that of a man’s.  In some countries where the law prohibits adultery for men as well as women, men are permitted to take more than one wife and also to enter into temporary marriages.

The WG recognises that in accordance with some traditions, customs or civil law systems, adultery may constitute a matrimonial offence bearing legal consequences in divorce cases, the custody of children or the denial of alimony amongst others. However, it should not be a criminal offence and must not be punishable by fine, imprisonment or death. In their statement, the experts cited several examples of good practices, where some countries have remedied this violation of women’s rights. A 1996 decision of the Guatemalan Constitutional Court struck down the penal code’s punishment of marital infidelity or adultery on the basis both of the constitution’s equality guarantees and human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).Similarly, in 2007, the Ugandan Constitutional Court overturned the adultery law that penalised women for adultery while leaving their male partners unpunished. It should be added that European countries have all decriminalized adultery.

The experts on the Working Group emphasized that the criminalisation of sexual relations between consenting adults is a violation of their right to privacy, infringing the International Covenant on Civil and Political Rights, as established almost two decades ago by international human rights jurisprudence. It is a violation of CEDAW’s prohibition of discrimination in the family. Maintaining adultery as a criminal offence – even when, on the face of it, it applies to both women and men – means in practice that women will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality, given continuing discrimination and inequalities faced by women.

The Working Group on the issue of discrimination against women in law and in practice was established by the Human Rights Council in 2010 to identify ways to eliminate existing discrimination in law and practice, and helping States to ensure greater empowerment and autonomy for women in all fields. The Group is currently composed of four independent human rights experts: Kamala Chandrakirana, Chair-Rapporteur (Indonesia); Emna Aouij (Tunisia); Frances Raday (Israel/United Kingdom) and Eleonora Zielinska (Poland).

Frances Raday is Vice-President-Rapporteur of the Working Group on Discrimination against Women in Law and Practice; Honorary President, Concord Research Center for Integration of International Law in Israel, The Haim Striks School of Law, COLMAN; Professor of Law, Hebrew University, Jerusalem (emerita)